View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Georgetown Law Scholarly Commons Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2017 Home Rule in an Era of Local Environmental Innovation Sarah J. Fox Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: http://scholarship.law.georgetown.edu/ipr_papers/2 This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: http://scholarship.law.georgetown.edu/ipr_papers Part of the Environmental Law Commons, and the State and Local Government Law Commons The past several decades have seen cities,1 reinvigorated by increased growth and political will, emerging as progressive forces in a number of areas. The urban portfolio often includes measures focused on environmental protection, and environmental advocates and scholars have been vocal in their support for this new wave of local environmentalism. This trend has been countered by a rising division between state and local populations on social issues. In a number of states, however, local legislation addressing issues such as sexual orientation and gender, minimum wage, and environmental protection has provoked state legislators to pass statutes that explicitly remove certain policy options from local authority. These state measures invalidate local laws passed, in most cases, pursuant to the localities’ home rule authority. At first glance, the framework for distribution of state and local power in the United States presents no barrier to this kind of state action. Localities have historically operated under the umbrella of the state, and are vested with only those powers specifically delegated to them. To loosen the strictures of this approach, throughout the twentieth century most states adopted home rule provisions. These provisions, although highly varied, were in general designed to allow localities to solve urban issues creatively, and avoid state determination of local matters. The home rule doctrine therefore allocates to localities a certain degree of authority. In all home rule states, however, that power is generally subject to override by the state upon assertion of a state interest, or the passage of general state legislation that conflicts with the local measure. While the ability of the state to counteract local laws is very strong, assertions of state power have at times received pushback from courts. This is particularly the case when certain categories of local legislation, or impacts on constitutional rights, are at issue. Such checks on state power 1 This Article uses “cities,” “localities,” and “local government,” interchangeably, and encompasses local governments of various sizes and population characteristics. See Richard Briffault, Our Localism: Part Two—Localism and Legal Theory, 90 Colum. L. Rev. 346, 346-49 (1990) (discussing the ways in which the term “city” can be used and construed in academic literature). While most of the examples of the kinds of local action discussed come from major metropolitan areas, the analysis applies equally to all subdivisions of the state. constrain legislative allocations of burdens and benefits, and make clear that there are boundaries to state ability to take back authority from localities. These frameworks do not apply well, however, to state measures that bar certain kinds of local environmental action. The lack of fit between these approaches and environmental laws leaves local control over environmental issues unprotected from even the most basic checks on state authority. As a result, the sphere of local autonomy carved out by home rule is particularly easy to undermine in the environmental context. There has a growing conversation about the potential for local action on environmental issues.2 There has also been much discussion of preemption as it relates to local lawmaking,3 and of the limitations on city authority in the face of state action.4 These two camps have not yet been fully reconciled, however; advocates for local action often fail to acknowledge the real limits on local power under the home rule framework, while local government scholars tend to accept those limits as inevitable. Because defining the proper sphere of local authority goes to the very heart of the home rule doctrine, the inapplicability of these protections to a specific kind of law warrants attention to a judicial or legislative fix. This Article attempts to bridge the gap between these positions by acknowledging the constraints of home rule while envisioning a way forward for local environmental laws. 2 See generally, e.g., GREENING LOCAL GOVERNMENT: LEGAL STRATEGIES FOR PROMOTING SUSTAINABILITY, EFFICIENCY, AND FISCAL SAVINGS, Keith H. Hirokawa & Patricia E. Salkin, eds., ABA Press, Section of State and Local Government Law (2012); see also, e.g., John R. Nolon, PROTECTING THE ENVIRONMENT THROUGH LAND USE LAW: STANDING GROUND 261-95 (ELI Press 2014); Brian Stone, Jr., THE CITY AND THE COMING CLIMATE: CLIMATE CHANGE IN THE PLACES WE LIVE 97-126, Cambridge University Press (2012). 3 To the extent that state authority over categories of local environmental laws has been discussed to date, it has generally occurred in the context of natural gas drilling, often through the lens of implied preemption. Because of the unique state role in oil and gas production, fracking regulations at the local level may require a different kind of inquiry. For that reason, this scholarship and case law, while contributing to a background understanding of state rejection of local measures, are unlikely to be directly relevant. Similarly, this Article does not discuss issues of implied preemption. At the core of this discussion is intentional, express preemption of local laws by state legislatures, and the extent to which home rule does or could offer some checks on that kind of preemption. 4 Shannon M. Roesler, Federalism and Local Environmental Regulation, 48 U.C. Davis L. Rev. 1111 (2015) (exploring the potential for federal authority to be exercised in support of local laws); Nestor M. Davidson, Cooperative Localism: Federal- Local Collaboration in an Era of State Sovereignty, 93 Va. L. Rev. 959, 987-89 (2007). 2 A potential solution may be available in the form of protections for the environment that exist in some state constitutions and the public trust doctrine. Where state constitutions protect a degree of environmental quality, that constitutional value may not be undermined by state action. And even where that right is not manifested in a specific constitutional guarantee, background public trust principles may establish the state and its localities as custodians of the environment for their citizens. Such principles could in turn inspire and enable judges to push back on reactive targeting of local measures by the state where the result is a net loss of environmental protection. This kind of judicial skepticism of state action, while open-ended in nature, is not unprecedented; a similar defense of local experimentation in support of citizens’ rights has been seen in decisions by the Supreme Court and others in response to a variety of restrictive state actions that intrude on principles of local control or infringe on constitutional rights. This Article suggests ways in which judges could similarly apply environmental protections and principles in evaluating state action. Certainly, there are many debates to be had about the merits of home rule and the decisionmaker best-suited to make policy for various topics. The trouble with many arguments that advocate for one level of government over another is that they have a tendency to take potentially short-sighted positions for the sake of an ideological victory. Fifteen years ago, many environmental advocates railed against local control as responsible for suburban sprawl and attendant environmental damage, and urged state or regional control of land use issues. Substantive principles located in state constitutional provisions and the public trust doctrine may, however, be able to offer an environmental lodestar for state and local governments alike. Today, given the political realities of the country, and that innovative environmental protections may currently be more likely to occur at the local level than any other, preservation of the possibility for environmental action within this realm of authority is important. Whether states’ preemption authority includes an ability to dismantle local environmental and other policies through 3 targeted prohibitions will have potentially far-reaching consequences. If cities are to continue their important work as leaders with regard to climate change adaptation and mitigation, transportation initiatives, pollution reduction, and many other issues, the prospect of states outlawing local policy responses one at a time is concerning. Modifying the lens through which state revocation of authority over certain categories of environmental policy is viewed will advance the interests of cities in making environmental progress at the local level. * * * * * Part I of the Article addresses recent trends toward local environmental policymaking. Part II discusses the contours of home rule authority and the power dynamic between state and local governments. Part III provides examples of how state preemption of local environmental action might be effected under this framework, looking in particular at statewide bans on